Protection of Freedoms Bill

My Lords, this is an important series of amendments. In particular, the first proposed amendment seems essential to a country that believes itself to be governed by the rule of law. Your Lordships have heard 1,200 mentioned as the figure of the separate powers of entry on to private property granted by primary or secondary legislation. That figure is confirmed by the Explanatory Memorandum produced to accompany the Bill. Therefore, it is not a figure which is contentious or simply argumentative. The 1,200 separate powers of entry were conferred by 580-odd pieces of primary or secondary legislation. The powers of entry are not simply powers of entry. They almost invariably include powers of search so those who enter can rummage through the premises in question. The powers apply not only to business premises where they may very well be needed, but also to homes—to domestic premises. The law of this country has developed so that it is well recognised that the police may sometimes need, without notice to the owner of the premises, to enter private premises to enforce the law and for the purposes of search and removal of material from the premises in question. However, the powers of entry in the Bill are not the powers of the police; they are powers of officials and regulators in numerous areas of public life, conferred by various instruments of public law. The notion that officials can be given power to enter the premises of private people, search those premises and remove what they believe to be relevant to their regulatory function without any authority from a judicial body seems quite contrary to how the rule of law ought to operate. For that reason, I particularly welcome the first amendment proposed by the noble Lord, Lord Marlesford. I believe that the public will understand the need of the police to exercise powers of entry without warrant. Less well understood and certainly less acceptable to the public at large is the need for general regulatory officials to have those powers. My noble and learned friend Lord Browne-Wilkinson said judicially in a case that was heard in 1991: "““Search and seizure under statutory powers constitute fundamental infringements of the individual’s immunity from interference by the state with his property and privacy””." In my respectful opinion, those are incontestable statements of opinion. It follows that proper safeguards to be associated with the exercise of these powers of entry, search and seizure are essential if the rule of law is to be available to retain the respect that a healthy society requires. Clause 40 has the heading, ““Adding safeguards to powers of entry””. For my part, I very much welcome that clause in that it addresses, I believe for the first time in comprehensive legislation, the need for there to be safeguards attached to powers of entry. Subsection (1) states: "““The appropriate national authority may””—" and I draw your Lordships’ attention to the use of the word ““may””— "““provide for safeguards in relation to any power of entry or associated power””." Therefore, the provision of safeguards is discretionary only; it says not ““must”” but ““may””. The proposed discretionary safeguards are listed in subsection (2). Paragraph (d) lists as one of the discretionary safeguards, "““a requirement for a judicial or other authorisation””." What the ““or other authorisation”” is supposed to comprehend, goodness knows, but that the requirement for a judicial authorisation is recognised is clearly correct. But why should that be simply a discretionary safeguard? Why should it not be an essential, invariable safeguard, except in the rare circumstance where the time to go and get the judicial authorisation is simply not present, given the urgency of the situation? Your Lordships have heard remarks about the obtaining of warrants. A warrant to enter premises to search and remove material found there of an incriminating character can be obtained ex parte—that is, without notice to the owner of the premises from a magistrate or, in some cases, a judge. There is no alerting the believed miscreant to the imminent entry and search. That seems a situation that ought to cater for any reasonable contingency other than the very rare contingency whereby the need for immediate steps is apparent. It is difficult to envisage a situation whereby the police would not in any event have the right to make an immediate search—with the pursuit of criminals, for example, or when life and limb was in imminent danger. In those situations, no one could object to a right for the police or any other well meaning people, regulators or otherwise, to enter premises for the purpose of saving the situation that would appear to have arisen. Subject to that exception, I can see no case for not requiring a judicial authorisation always to be obtained. The notion that notice to the owner or occupier of the premises would alert the individual to what was afoot and lead to the removal of incriminating material is unreal. The warrant can be obtained from the magistrate without notice. In civil law, procedures have been evolved—and I think that their evolution is of relatively modern origin—under which a so-called search and seizure order, which used to be called Anton Piller orders, can be obtained from a judge enabling an applicant who believes that he has some civil cause of action against the owner of a premises to have a search of those premises for incriminating material to support his or her case—or its, if it is a company. The entry without notice is well understood in civil law, but only with judicial authorisation. Why on earth should that not also be the case in the criminal law? I cannot see the argument to the contrary, except in the very rare case to which I have already referred, namely where the imminent emergency and risk is so great that an immediate entry is required. Where that is the case, I cannot concede that the police would not have the right to enter anyway. The indignation that people might feel, to have faceless regulators demanding entry and rummaging through their cupboards and papers without any judicial authorisation, would be huge, and justifiably so. That is not the way in which the law ought to operate. For those reasons, it seems to me that the first amendment proposed by the noble Lord, Lord Marlesford, is thoroughly deserving of support and I would submit that the House ought to support it. As to the second amendment, I am not so clear about that, because, as I say, I can see very little scope for the need for any other requirement than judicial authorisation, except in a case where the emergency is so acute that there would not be time to get to a magistrate to get the search order and then search the premises accordingly. I therefore feel a little dubious about the second amendment. As to the sense behind the first amendment, I am wholeheartedly in favour of it. I support it and submit that the House should do likewise. The ““may”” in Clause 40(2)(d) ought in my opinion to be a ““must””. It is quite inadequate for the requirement to obtain judicial authorisation to be simply discretionary. For all those reasons, I wholeheartedly support these amendments.